First, urinalysis, if compelled by the Government, is a "search" subject to the restrictions of the Fourth Amendment. See Skinner, 109 S. Ct. at 1412-13; Von Raab, 109 S. Ct. at 1390. Second, even when such "searches" are conducted by private employers, the Government's encouragement, endorsement, and participation in the private employers' actions may suffice to implicate the Fourth Amendment. See Skinner, 109 S. Ct. at 1412. Third, individualized suspicion of a particular employee is not required by the Constitution. See Skinner, 109 S. Ct. at 1417; Von Raab, 109 S. Ct. at 1390. Fourth, it is not necessary to show that a documented drug problem exists within the particular work-place at issue. See Von Raab, 109 S. Ct. at 1395. ("The mere circumstance that all but a few of the employees tested are entirely innocent of wrongdoing does not impugn the program's validity.") Finally, when a Fourth Amendment intrusion "serves special governmental needs, beyond the normal need for law enforcement, it is necessary to balance the individual's privacy expectations against the Government's interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context." Harmon, 878 F.2d at 488 (quoting Von Raab, 109 S. Ct. at 1390; accord, Skinner, 109 S. Ct. at 1413-14).

Following Skinner, Von Raab, and Harmon, this Court need not re-visit the issues of whether the Coast Guard drug testing regulations mandating testing by private employers constitute state action, whether such tests may be deemed "searches," and whether existing documentation of a drug problem in the merchant marine is sufficient to warrant the new regulations.
*fn2"
Rather, the Court's inquiry is confined to a determination of whether each category of proposed testing is "reasonable" as required by the Fourth Amendment's protection against unreasonable searches.
*fn3"

This Court has already engaged in an extensive analysis of the interests of the parties for pre-employment testing when it considered the merits of plaintiffs' motion for a preliminary injunction. Although the Court considered the pre-employment testing solely as it applied to large employers, the Court finds that its analysis holds true for small and medium-sized employers as well. In an effort to provide a basis for the ruling it issues today, yet avoid redundancy, the Court will briefly outline its reasons for finding that the Government's compelling interest in maritime safety outweighs the diminished privacy interests of individuals subject to pre-employment testing.
*fn5"

The Government's interests can be summarized in one word: safety. Incorporated into this safety interest are the interests of maintaining a drug-free work-place, deterring employees engaged in safety-sensitive tasks from using controlled substances, and ensuring that employees will be prepared to respond quickly and effectively in an emergency situation aboard a commercial vessel. These safety interests for the maritime industry are indistinguishable from those safety interests identified in Skinner for the railroad industry, which the Supreme Court found to be compelling. In each of the categories of testing analyzed by the Court, the Government's compelling interest in safety will be weighed against the individual's privacy interests to determine if the warrantless searches mandated by the regulations are reasonable under the Fourth Amendment.

The Court is uncomfortable relying on the Government's broad assertion that every crewmember's safety-related responsibilities are so direct and important that random testing as proposed by the Government is constitutionally permissible.
*fn7"
In AFGE, the Court found the privacy interests of employees occupying the three specifically challenged positions outweighed by the Department of Transportation's compelling interests in preventing drug use in such personnel based on specific findings regarding the job duties of each position. 280 U.S. App. D.C. 262, 885 F.2d 884. The three positions challenged were motor vehicle operators, FRA hazardous material inspectors, and FAA aircraft mechanics. The Court emphasized the "extraordinary safety sensitivity of the bulk of the covered positions." AFGE 885 F.2d at 890. With regard to the FRA inspectors, the Court found that their "exclusive assigned duties" were "intimately related to the prevention of public harm." Id. at 891. Random testing of FAA aircraft mechanics was upheld based on the Court's decision in Cheney, in which the Court relied on the irreversible and calamitous consequences of a single drug-related lapse by a covered employee. Id. at 892. Finally, random testing of motor vehicle operators was upheld because of their responsibilities in transporting visiting foreign dignitaries and key Department officials and in operating passenger-laden shuttle buses. Id. None of the characteristics which the Court found important in the three challenged positions in AFGE are shared by all crewmembers covered in the Coast Guard's regulations.

The Government emphasizes the gravity of the potential safety risk, as opposed to the focus on the immediacy of the safety threat articulated in Harmon, Von Raab, and Skinner. Plaintiffs contend that these cases limit a Court's consideration to evaluation of the immediacy of the potential safety threat, as opposed to the gravity. This limitation was negated by this Circuit in Cheney, which held that "the reasonableness of the testing plan [was] determined in part by the potential gravity of the feared harm," Id., at 612. In that case, the Court was concerned with the threat to public safety posed by drug-impaired, armed officers, many of whom carried automatic weapons.

Regardless of which test the Court employs today, defendants still fail to convince the Court of the immediacy or gravity of the potential safety threat sufficient to mandate random drug testing for all employees currently covered in the Coast Guard's regulations. A drug-related lapse by a messman or wiper would not necessarily give rise to "irreversible and calamitous consequences." Cheney, 884 F.2d at 610. Nor do the tasks of cooks, messmen, wipers, or other such covered employees under the Coast Guard regulations approach the direct relationship to safety shared by the employees for whom random testing was found reasonable in Cheney -- employees directly involved in the flying or servicing of aircraft and police/guard personnel. Thus, the gravity of the potential safety threat does not rise to the level found persuasive in Cheney.8

The Court finds the defendants' "heave to" arguments unconvincing. While the Court does not question the Government's legitimate interest in safety, the issue it decides is whether that interest is sufficiently compelling to justify a warrantless, suspicionless search. Harmon, 878 F.2d at 490. The Court cannot find that random testing of such a broad category of employees is reasonable. Von Raab suggests that "a clear, direct nexus . . . between the nature of the employee's duty and the nature of the feared violation" must exist for the Government to search its employees. Harmon 878 F.2d at 490. No such direct nexus between the duties of each of the crewmembers subject to random testing under the proposed regulations and the safety concerns of the Government has been shown by the Government.

The Court recognizes that a drug-related blunder by a wiper or cook could, through a chain of ensuing circumstances, lead to an emergency situation that is a threat to public safety. However, the chain of causation between the misconduct of a cook or wiper and injury is considerably more attenuated than that found persuasive for drug-related blunders by the air traffic controllers, pilots or guards in Cheney. Elongation of the causal chain in the name of public safety cannot provide a reasonable basis under the Fourth Amendment for a warrantless, suspicionless search.

Several Courts have found it significant whether or not the covered employees work in a "traditional office environment," on the ground that working in such an environment would contribute to the ease with which drug use could be detected. See Von Raab, 109 S. Ct. at 1395; Harmon, 878 F.2d at 489; Cheney, 884 F.2d at 614. However, in this case, this significance diminishes. Although the crewmembers would not work in a "traditional office environment," the close and confined nature of a shipping vessel tends to lend itself to easy detection of drug abuse, making random testing less imperative.

The Court has not been shown that the governmental interest randomly testing all crewmembers for drugs in the interest of safety outweighs the crewmembers' privacy interests. The regulations providing for random testing, as currently drawn, cannot be sustained under the Fourth Amendment. As such, the Court will enjoin the implementation of the regulations providing for the random testing of all crewmembers.

The regulations for post-casualty drug testing in the case presently before the Court share these same characteristics. First, the maritime employers will exercise limited discretion in their implementation of the regulations for post-casualty testing. Plaintiffs suggest that the events specified in the regulations are not sufficiently narrowly defined, and include obligations to test on the basis of such less serious events as any injury requiring medical attention. See Plaintiffs' Reply Memorandum [ Transportation Institute ], at 13. However, the regulations confine post-casualty testing to "all persons directly involved in a serious marine incident." 53 Fed.Reg. at 47,081 (to be codified as 46 C.F.R. § 16.240). The regulations define both "serious marine incident" and "directly involved." See supra at 5-6. Plaintiffs further argue that the Coast Guard rules are not as precise as the FRA standards in Skinner.11 The Court rejects this argument, and finds that the Coast Guard standards, while not identical to the Railroad standards at issue in Skinner, are as narrowly defined, and involve the same degree of employer discretion as was the case in Skinner.

Second, this Court has already held that the safety interests of the Government in the context of the maritime industry are as compelling as those identified for the railroad industry in Skinner. Third, the privacy interests of covered employees under the Coast Guard regulations are diminished in the context of post-casualty testing. Post-casualty testing is contingent on an event, which furnishes an indication that some dereliction of duty has occurred and requires concrete evidence that events have not gone as planned. Harmon, 878 F.2d at 488. As was the case in Skinner, post-casualty testing will help maritime employers obtain invaluable information about the causes of major accidents and enable them to take appropriate measures to safeguard the general public. See AFGE, 885 F.2d at 890-891, citing Skinner, 109 S. Ct. at 1420.

Testing a crewmember on the basis of reasonable suspicion that he or she has used a dangerous drug does not transgress the Fourth Amendment.
*fn12"
Skinner makes clear that the government's interest in safety outweighs the privacy interest of crewmembers who are reasonably suspected to have used a dangerous drug based on direct observation of specific, contemporaneous physical, behavioral or performance indicators of probable use. Id. at 1409, 1422. See also National Treasury Employees Union v. Lyng, 706 F. Supp. 934 (D.D.C. 1988) (holding that reasonable suspicion testing of employees was permissible, provided that such testing is based upon reasonable, articulable, and individualized suspicion that a specific employee may be under the influence of drugs while on duty), and Bangert v. Hodel, 705 F. Supp. 643 (D.D.C. 1989) (holding that reasonable suspicion testing was permissible, provided that such testing is based upon reasonable suspicion of on-duty drug use or on-duty drug-related job impairment). The Court further notes that the diminished privacy interests of employees by virtue of their employment in a highly regulated industry also comes into play in the context of reasonable suspicion testing. Plaintiffs, perhaps realizing the difficulty they face arguing against the validity of this category of testing, resort to argument regarding delegation of law enforcement to untrained private citizens.
*fn13"
This argument fails. The Government interest served by the regulations at issue here is public safety, not law enforcement.

Plaintiffs also raise several statutory claims based on the Administrative Procedure Act, which the Court finds are insignificant.
*fn14"
Plaintiffs assert that the Coast Guard regulations constitute arbitrary agency action in excess of statutory authority, in violation of 5 U.S.C. § 706(2)(A) and (E). Pursuant to this section, Courts must hold unlawful and set aside agency action that is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," or "in excess of statutory jurisdiction, authority, or limitations or short of statutory right." 5 U.S.C. § 706(2)(A) and (C).

The only partially valid statutory claim raised by plaintiffs is that the Coast Guard arbitrarily extended the regulations to cover virtually all crewmembers aboard U.S.-flag vessels without considering whether their individual jobs are safety-sensitive. The Court has found that the regulations for random testing of all crewmembers is violative of the Fourth Amendment. Thus, the Court holds that it will set aside the Coast Guard's regulations providing for random testing, not because they are arbitrary and capricious, as plaintiff contends, but because they are "not in accordance with law," and "contrary to constitutional right." 5 U.S.C. § 706(2)(A) and (B).

IV. CONCLUSION

For the foregoing reasons, plaintiffs' motion for summary judgment is denied in part and granted in part and defendants' motion for summary judgment is denied in part and granted in part.

Plaintiffs' motion for summary judgment is granted in part with respect to the Court's holding that the Coast Guard's regulations providing for random testing of all crewmembers is violative of the Fourth Amendment. Accordingly, the defendants are enjoined from implementing the current regulations which provide for random testing of all crewmembers. The Coast Guard remains free to promulgate new, narrower regulations, subject to this Court's review.

Defendants' motion for summary judgment is granted in part with respect to the Court's holding that the Coast Guard's regulations providing for pre-employment testing, periodic license application or renewal testing, post-casualty testing, and reasonable cause testing do not violate the Fourth Amendment. Accordingly, the Court will not enjoin the implementation of these categories of testing regulations.

An order in accordance with this memorandum opinion is issued herewith.

Date: December 18, 1989

ORDER -December 18, 1989, Filed

In accordance with the memorandum opinion issued herewith and for the reasons stated therein, it is this 18th day of December, 1989,

ORDERED that plaintiffs' motion for summary judgment shall be granted in part and denied in part. Plaintiffs' motion shall be granted with respect to regulations providing for random testing. Accordingly, defendants are permanently enjoined from implementing the Coast Guard's regulations, as currently drawn, providing for the random testing of crewmembers. Plaintiffs' motion shall be denied with respect to regulations providing for pre-employment testing, periodic license application or renewal testing, post-casualty testing, and reasonable cause testing; and it is

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